DETERMINING TRIP AND FALL FACTS AND SUMMARY

WITHIN A WRITTEN EXPERT WITNESS REPORT

by G. P. Clemente

As the owner and president of a construction company in California for nearly 25 years, principally involved with concrete and asphalt repair, I’ve seen my share of trip and fall hazard liabilities in various shapes, forms and situations. My company has assessed and repaired over 50,000 walkway trip hazards for multi-family housing, homeowners associations, residential neighborhoods, retirement communities, commercial properties and municipalities. Many of them are managed by some of the largest property management firms in California, along with the banks and insurance companies they are bound to.

As an expert witness involved with trip and fall lawsuits from the resulting accidents and injuries of neglected sidewalk and pathway hazards, many of these injuries come about when owners and maintenance personnel fail to recognize the early warning signs of developing endangerments. As an investigator of these, it’s my job to (1) identify how far back a trip and fall hazard first came to be, (2) how long it remained dangerous, (3) how to repair the problem, and (4) who was chiefly responsible—the property owner or walkway user.

First, an anecdotal story. We received a call from a management company doing business with us for many years relating that one of their residents had tripped and fallen from a sidewalk hazard that needed investigating. We met with the female accident victim who showed us the area on a concrete walkway that had cracked and started to buckle. However, the raised crack looked to be no more than an eighth of an inch high. The woman using the walkway was in good condition physically, yet somehow she had simply dragged the sole of her shoe across the raised area and tumbled to the ground. She displayed the damage to her leg, which was considerable—deep bruises and contusions from her ankle to her knee. The moral to the story was that walkway trip and falls do happen from the slightest of uneven surface areas and that most times they are the culprits of dangerous accidents, chiefly because the least noticeable hazards to the eye are smaller buckled cracks and joints. Think about it. Are we more likely to readily see and then avoid a taller sidewalk trip hazard or a much smaller, less obvious one?

Investigating this particular situation took some observations to identify the problem--its origination; what could have been done about it; and ultimately, who was responsible for the resulting accident? As an expert witness, if a report needed to be written because the injured party in this particular case decided to file suit as a plaintiff, I would have briefed her counsel as follows:

1.Identify when problem first germinated. With facts in hand, provided with measurements it would have been determined that the accident area had a nearby tree with roots that over time (starting approximately four or five years previous) produced a break in the underlying foundation of the sidewalk that cracked the concrete and lifted it 1/8th of an inch.

2.How long problem remained hazardous. Starting six to eight months prior to the trip and fall, the concrete was breached by underlying tree roots. This means that for six to eight months this particular hazard was a growing, unattended accident waiting to happen.

3.How to best repair the problem. In this instance, there are two available options for repairing a buckled and broken section of concrete. One, is to remove and replace the affected area, while also removing any underlying tree roots that caused the problem in the first place before pouring in new concrete. A second option is to scarify and grind down the lifted area with concrete leveling machinery to make the lifted sidewalk joint as level as possible. Both options are effective with the only factor being cost. Removal and replacement methods are generally more expensive than grinding and more of a long term solution.

4.Assigned responsibility for the accident. Briefly, with the facts at hand, it can be determined that the property owner should assume responsibility for the accident. The accident victim was in fair physical shape and unimpaired. Performing any prohibited pedestrian activities such as skateboarding, roller skating or bicycling according to stated property rules were not factor either. The property owner, not attending to the growing broken crack lifted by tree roots for a number of months would have been the culpable party and also fortunate that no other pedestrian victim was hurt.

As a side note to this, many will ask, is there a possible municipal code that would require the lifted sidewalk area to be at least, say, one quarter of an inch or higher for it to be deemed a legal trip hazard? Yes, municipal codes are to be taken into consideration during a trip and fall lawsuit of this nature, but if there is an injury and it can be proven there was culpability by the property owner, it is up to the court to weigh these concerns with possible adjudication in favor of the plaintiff. The size of the lifted trip hazard possibly may not be a conclusive factor, only that there was a provable and obvious cause and effect resulting in injury.